For many people, child custody determination is one of the more stressful aspects of divorce. Understanding how judges analyze child custody and parenting time in New Jersey can allay fears and prepare parents for often-emotional child custody proceedings. In addition, when a parent’s life dramatically changes after a child custody arrangement is finalized, knowing whether custody modification is possible also can be helpful.
When parents with minor children get divorced, they may create their own child custody arrangement and include it in a marital settlement agreement. If the parents are unable or unwilling to resolve the child custody issue, a judge will make a child custody determination that is in the best interest of the child.
CHILD CUSTODY FACTORS
When analyzing which custody arrangement would be in the best interest of the child, judges in New Jersey must consider the following factors listed in N.J.S.A. 9:2-4:
- The parent’s ability to agree, communicate and cooperate regarding the child;
- The parent’s willingness to accept custody and share custody with the other parent;
- Any history of domestic violence;
- The child’s and either parent’s safety from physical abuse by the other parent;
- The child’s needs;
- The age and number of the children;
- The preference of the child if he or she is capable of forming an intelligent decision;
- The quality and continuity of the child’s education;
- The distance between the parents’ homes;
- The stability of each parent’s home environment;
- The amount and quality of time spent with the child before the divorce;
- The parent’s employment responsibilities; and
- The fitness of the parents to raise the child.
According to New Jersey statute, a person is not deemed unfit to parent unless his or her conduct has a substantial adverse impact upon the child. Also, there is no presumption that either parent is preferred for custody solely because of his or her gender.
The New Jersey Legislature has declared that the state’s public policy is to assure minor children frequent and continuing contact with both their parents, if appropriate considering the children’s best interest. After divorce, New Jersey laws also encourage both parents to share the rights and responsibilities of raising children. Therefore, the most common types of child custody in New Jersey is joint legal and shared physical custody.
TYPES OF CHILD CUSTODY
When joint custody is awarded, the child frequently alternates between the parents’ two residences. The child custody order will declare the physical custody and residential arrangements for the child and designate the Parent of Primary Residence (PPR) and the Parent of Alternate Residence (PAR). It also will contain provisions for communication between the parents on major life decisions for the child such as healthcare, religion and education.
Otherwise, if joint custody is not in the best interest of the child, a judge may award sole custody to one parent. Moreover, New Jersey law also allows judges to order any other custody arrangement that they determine is in the best interest of the child. Joint custody is most frequently ordered, however, and deviations from this norm are unusual.
CHILD CUSTODY MODIFICATION
Once a child custody arrangement is ordered, modification of its terms occurs only by agreement or a substantial change in circumstances.
Because the primary consideration in child custody determinations is the best interest of the child, a parent seeking to alter custody must establish a prima facie case for modification by showing that a substantial change in circumstances affects the welfare of the child such that his or her best interest would be better served by modifying the custody arrangement.
If the petitioner is able to establish a prima facie case for modification, a judge then must consider whether information gathering through discovery is necessary. If so, the judge will order discovery and define its scope. Oftentimes, the judge will hold a plenary hearing at which each parent presents his or her testimony, arguments and evidence. The children may be interviewed by the judge depending upon their ages.
A substantial change in circumstances is a difficult standard to meet. Job loss is not a probative factor unless the parent’s situation is so desperate that he or she is unable to care for the child; however, evidence of substance abuse or physical abuse by a parent is generally sufficient to warrant a change in child custody. Judges also consider the age of the child and his or her preferences, if old enough, as well as the child’s schooling and the lifestyle of the parent.
If you are considering divorce, are wondering what might happen with your children after divorce or would like to modify an existing child support order,contact a family law attorney with experience in child custody cases to discuss your legal rights and options.